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Lawyer wants state fined millions of dollars over English language programs

By HOWARD FISCHER
Capitol Media Services
Sunday, July 08, 2007

PHOENIX -- An attorney for parents of English learners wants a federal judge to again begin imposing stiff fines on the state for failing to properly fund teaching programs.

Tim Hogan said Friday that lawmakers ignored an order in March by U.S. District Court Judge Raner Collins to come up with a new plan by the end of the legislative session. Instead, they chose to do nothing and instead appeal. Hogan said the threat of substantial fines may be what is finally needed to get their attention.

"While the (legislators) may complain that it is inconvenient to remedy the defects identified by the court, they are certainly able to do so," Hogan said in his filing in federal court in Tucson. "And the imposition of fines will at least initiate the process."

But Senate President Tim Bee said Friday he believes the funding scheme lawmakers enacted complies with federal law despite Collins' ruling to the contrary. And Bee said he sees no reason to make changes -- at least not until the 9th U.S. Circuit Court of Appeals rules who is right.

Hogan's request comes a week after the appellate judges rebuffed a request by legislators to block him from seeking fines against the state.

But that ruling was based on the request being premature, as Hogan had yet to seek penalties. Friday's filing sets the stage for legislators to renew that request.

In the latest filing, Hogan wants Collins to set a schedule of fines similar to what the judge ordered in late 2005.

At that time Collins gave legislators 15 days to act. After that fines began accruing at $500,000 a day for the first 30 days, bumping to $1 million for the next 30 days, $1.5 million for the 30 days following and $2 million thereafter.

Hogan said the fines had the desired effect: Legislators finally enacted a plan which Gov. Janet Napolitano allowed to become law on March 2, 2006 -- after $21 million in fines had accumulated.

Collins rejected the plan as inadequate.

The appellate court overruled that decision, saying Collins had not given state officials a chance to prove that existing programs are doing a better job of teaching English to students than the ones that were in existence in 2000. That is when a different federal judge first found the state's funding scheme illegal.

And the appellate judges voided the fines.

In March, after new hearings, Collins again ruled the state is not in compliance with federal laws that require all students have the opportunity to learn English.

Arizona currently gives schools an extra $365 in state aid for each of the approximately 135,000 students who are not yet proficient in English.

The plan that Collins rejected would have boosted that to $444, at least temporarily, while a special panel decides what teaching methods work best. After that, schools would have to adopt one of those teaching methods and tell the Department of Education how much they need.

Lawyers for the Legislature and state School Superintendent Tom Horne contend that complies with federal law.

Hogan said legislators are dragging their feet, saying there already are studies which show it takes more than $1,000 extra per student to do the job right.

He also is objecting to provisions in the law which require schools to divert other federal funds to English learner programs before seeking additional state assistance. He argued -- and Collins agreed -- that violates federal law.

Aside from the lack of sufficient funds, Collins also said it is not legal for the state to limit that additional aid to just two years. The judge said there is evidence it takes some students longer than that to become proficient.

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